Are IDF budget cuts slowing wheels of justice in W. Bank?

IDF prosecution violates its obligations to Palestinian defendants time after time, military court says.

Raed Jaser arrives to court (photo credit: Reuters/CTV News)
Raed Jaser arrives to court
(photo credit: Reuters/CTV News)
It’s not often that the president of the IDF West Bank military courts accuses the IDF West Bank Prosecutor’s Office of “systematically” violating some Palestinian defendants’ fundamental rights to a fair trial, including under the Geneva Conventions.
But that is just what President Netanel Benishu did in a July 24 decision, which was not widely disseminated to the press but was acquired by The Jerusalem Post.
Moreover, Benishu did not suffice with criticism of the particular case but said that the court had warned the IDF prosecutor of this problem in the 2009 Hamad decision, and that “four years later this issue is still left broken as it was, where the prosecution violates its obligations to the defendants time after time.”
He then ordered the IDF prosecutor to develop a new set of formal guidelines to avoid recurrence of the issue.
In a case already well known for the notoriety of the charges, including the attempted murder of Tsiona Kalla, wife of famous singer Itzik Kalla, in one of the worst West Bank stone throwing incidents, Benishu found that the IDF prosecutor was “systematically” failing to provide notice to the defendants’ lawyer, Ahlaem Haddad, of top-secret evidence that the IDF possessed regarding the case.
The attack occurred on November 20, the defendants Abd Hamamara and Ram’ah Hamamara were arrested on December 1 and they were indicted on December 25.
The general rule is that the prosecution must provide all evidence against a defendant and evidence that may be of use to exonerate a defendant to the defendant upon filing an indictment against the defendant.
However, regarding classified evidence, which often arises in terror-related cases involving an investigation by the Shin Bet (Israel Security Agency), the prosecution may obtain an official certification that certain evidence is classified.
According to official procedure, in such cases, the prosecution must submit the certification to the defense upon the filing of the indictment, and often the certification is accompanied by a censor-approved “paraphrase” of the material.
In this case, the IDF prosecutor did not submit the two certifications in the case to the defense until May 21 and May 30, with May 21 being one day before the trial was scheduled to begin.
It should be noted that in the well-known 2010 Amar case and other cases, the courts have said that it understands that it is not always realistic for the certification to be filed simultaneously with the indictment and is ready to allow a “flexible” stance on the issue for up to a couple of months.
This flexibility exists in light of a recognition that it is difficult for the Shin Bet to decide what can and can’t be disclosed until it knows what the charges are, at which point consultations are held which should be performed carefully, since mistakes could lead to dead or compromised intelligence sources.
It should also be noted that the IDF prosecutor and Benishu seemed to agree that there could be some reasonable delay when the prosecution and the defense were carrying on negotiations over a possible plea bargain agreement.
In other words, if there will not be a trial, why make the Shin Bet and the prosecutor expend significant resources to decide what to classify, what not classify and what to provide as a paraphrase? What Benishu noted stood out in this case was not only that around six months (versus a couple of months) passed until the certification was produced the day before the trial was due to start, but that the prosecution had not even notified the defense that there was classified material and that it would be seeking a certification to keep it classified.
It was the combination of the delay in submitting the certification plus keeping secret that classified material existed that prompted Benishu’s allegation that the defendants’ right to a fair trial under the Geneva Conventions could be compromised.
On that issue, it is hard to say what led to the prosecution’s actions.
The defense speculated that it was part of a Shin Bet attempt to cover up evidence that would undermine the prosecution’s main witness against the defendants as having been coerced into testifying falsely against the defendants, and asked the court to remove the secrecy certification so that it could view the evidence.
But the court rejected that request. Having viewed the evidence privately, the court noted that despite what it called “misconduct” on the prosecutor’s part as a matter of procedure, none of the evidence would change the verdict in the case or prove any such cover-up.
Hence, the court upheld the secrecy certification.
That may leave more mundane explanations of the prosecution’s actions – such as inadequate resources.
For years, the IDF’s non-war-making functions – such as the legal, spokesman, foreign relations and other divisions – have been understaffed or sometimes partially staffed by young soldiers without significant special training.
While no official public study has been conducted recently, the recent large cuts in IDF resources may be trickling down into the legal division and directly or indirectly impacting its ability to keep up with its caseload and such procedural but important tasks as timely notification of the existence of classified material and producing secrecy certifications to show the defense.
If this is true, it is not clear that even a harsh court order, absent some sort of clear crisis, will change the landscape.